Posted on: 17 October 2017
Sometimes, despite the best efforts of all concerned, mistakes can be made in a legal process. These errors may only be found at a crucial juncture in the future, when one of the parties is no longer around to help rectify them. This is particularly problematic in the case of an estate, where the mistakes were discovered after the will maker had passed away. What happens in this situation, if an administrative mistake threatens to prevent the will from being executed?
In many cases, the probate court is allowed a certain amount of discretionary power to rectify errors and proceed with the dispersal of the estate. Legislation has been introduced to allow them to do so if either a clerical error was made, or the will doesn't give the right effect to the instructions given. The wording of this particular law does vary between states and territories and it's important to check what it says in your jurisdiction. However, this ability is time bound and is only available for a matter of months following the death of the will maker. Occasionally, an extension of time can be granted by a court, but not if the estate had already been distributed.
What the Court Will Consider
If a court is to intervene, it will look very carefully at two different areas. Firstly, the judges will want to be happy that the will as it is written or expressed will not carry out the intentions of the will maker. Also, they'll want to be clear about the real intentions of the testator in relation to the part of the document that is in question.
Consequently, anyone who has a vested interest in the outcome will need to provide clear and relevant documentation as evidence of the testator's intentions. In other words, this evidence need to be able to convince the court without question about the intentions of the will maker. It will not be sufficient to speculate about the testator's intention, or to provide an opinion about the outcome, one way or the other.
However, most courts will make a clear effort to try and resolve the situation, rather than declare that the situation is intestate. If a solution can be found reasonably, then it should be pursued.
If you have found some errors in the will of a loved one and especially if you can provide some evidence to support a solution, get in touch with a solicitor to help you fight this through the court.Share